Depew Paving Co., Inc.

National Labor Relations Board - Board Decisions

Nov 20, 1950

92 N.L.R.B. 142 (N.L.R.B. 1950)

In the Matter of DEPEw PAVING CO., INC . and NAPOLEON SARGENT,
AN INDIVIDUAL
Case No. 3-CA-217.-Decided November 20, 1950
DECISION AND ORDER
On July 13 , 1950, Trial Examiner Albert P. Wheatley issued his
Intermediate Report in the above -entitled proceeding , finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices , and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. The Trial Examiner also found
that the Respondent had not engaged in certain other unfair labor
practices alleged in the complaint , and recommended dismissal of these
allegations . Thereafter , the Respondent filed exceptions to the In-
termediate Report, and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act , the Board
has delegated its powers in connection with this case to a three -member
panel [Members Houston, Murdock, and Styles].
The Respondent's request for oral argument is hereby denied, as
the record , the exceptions , and the Respondent 's brief, in our opinion,
adequately present the issues and the positions of the parties.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed . The Board has considered the Inter-
mediate Report, the Respondent 's exceptions and brief, and the entire
record in the case, and hereby adopts the findings , conclusions, and
recommendations of the Trial Examiner , with the modifications and
additions set forth below.
1. The Trial Examiner found , and we agree , that it will effectuate
the policies of the Act to assert jurisdiction herein. The Respondent's
operations for the year 1949, which are fully described in the Inter -
mediate Report, include the construction , maintenance , and repair
of roads and of a landing strip at Buffalo Airport for which the Re-
spondent received sums far greater than $50,000 . The totality of these
operations is greatly in excess of that which the Board has recently
92 NLRB No. 36.
142
:. DEPEW PAVING CO., _INC.. , - 143
stated to be the minimum required for exercising its discretion to
assert jurisdiction on the basis of services supplied to instrumentalities
of commerce.'
The Trial Examiner found, and we agree, that the Respondent vio-
lated Section 8 (a) (1) and (3) of the Act by its discharge of Napoleon
-Sargent. This finding was based largely upon the testimony of
Sargent. The Trial Examiner went on to say, however, that
"even if Gibbs' [Respondent's superintendent] testimony is credited
Respondent's position probably is untenable as an excuse for its con-
duct. . . ." We find it unnecessary to pass upon, and do not adopt,
the alternative thus raised by the Trial Examiner. The Trial Exam-
iner's credibility findings with respect to Sargent's testimony are sup-
ported by a clear preponderance of all the relevant evidence. We shall
therefore adopt these findings and the findings of fact based thereon.
3. The Trial Examiner recommended dismissal of the allegation in
the complaint that the Respondent had entered into an unlawful agree-
ment with the Union. No exception has been filed to this recommenda-
tion. Accordingly, we shall dismiss this allegation of the complaint.
The Remedy
We found that the Respondent, by its discharge of Sargent and other
illegal acts, violated Section 8 (a) (1) and (3) of the Act. We are of
the opinion, upon -the entire record in this case, that the commission
in the future of such acts and of other unfair labor practices may be
anticipated from the Respondent's conduct in the past.. We shall
therefore order that the Respondent cease and desist from such con-
duct, and from in any other manner infringing upon the rights guar-
anteed to its employees in Section 7 of the Act.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Depew Paving Co., Inc.,
Depew, New York, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Encouraging membership in International Hod Carriers'
Building and Common Laborers' Union of America, Local 210, AFL,
or any other labor organization of its employees, by discharging any
of its employees or in any other manner discriminating in regard
to their hire or tenure of employment or any term or condition of
2 Cf. Hollow Tree Lumber Company, 91 NLRB 635.
143-1 DECISIONS' OI( NATIONAL LABOR RELATIONS BOARD
their employment, except in accordance with Section 8 (a) (3) of
.the Act ;
(b) Interrogating employees concerning their union affiliations, ac-
tivities, or sympathies;.
(c) In any other manner interfering. with, restraining, or coercing
employees in the right to refrain from exercising the rights guar-
anteed in Section 7 of the Act, except to the extent that such rights
may be affected by an agreement requiring membership in a labor
-organization as a condition of employment as authorized by Section
:8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds
-will effectuate the policies of the Act :
(a) Offer to Napoleon Sargent immediate and full reinstatement
to his former or substantially equivalent position without prejudice
-to his seniority or other rights and privileges;
(b) Make whole Napoleon Sargent, in the manner set forth in
the section of the Intermediate Report entitled "The remedy," for
:any loss of pay he may have suffered by reason of the Respondent's
,discrimination against him;
(c) Upon request, make available. to the Board or its agents, for
examination and copying, all payroll records, social security payment
records, time cards, personnel records and reports, and all other
records necessary to analyze the amounts of back pay due and the right
of reinstatement under this Order ;
(d) Post at its place of business in Depew, New York, copies of the
notice attached hereto marked Appendix A.2 Copies of said notice,
to be furnished by the Regional Director of the Third Region, shall,
immediately upon receipt thereof, after being duly signed by-the
Respondent's representative, be posted by the Respondent and main-
tained by it for sixty (60) consecutive days thereafter in conspicuous'
places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by any other
material; and
(e) Notify the Regional Director for the Third Region, in writing,
within ten (10) days from the date of this Order, what steps the Re-
spondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed insofar as it alleges an unlawful agreement or arrangement
between the Respondent and International Hod Carriers' Building
and Common Laborers' Union of America, Local 210, AFL.
2 In the event this Order is enforced by decree of a United States Court of Appeals, there
shall be inserted in the notice, before the words, "A Decision and Order" the words, "A
Dtcree of the United States Court of Appeals Enforcing." o
DEPEW PAVING CO., INC.
APPENDIX A
NOTICE TO ALL EMPLOYEES
143-2
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
AVE WILL NOT encourage membership in INTERNATIONAL HOD
CARRIERS' BUILDING AND COMMON LABORERS" UNION OF AMERICA,
LOCAL 210, AFL, or in any other labor organization, by discrimi-
nating in any manner in regard to hire and tenure of employment,
or any term or condition of employment, except as required by an
agreement requiring membership in a labor organization as a
condition of employment as authorized in Section 8 (a) (3) of
the Act.
AVE WILL NOT interrogate our employees concerning their union
affiliations, activities, or sympathies.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the right to refrain from any or all of
the concerted activities guaranteed them by Section .7 of the Act,
except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition
of employment, as-authorized in Section 8 (a) (3) of the Act.
WE WILL OFFER to Napoleon Sargent immediate and full re-
instatement to his former . or substantially equivalent position
without prejudice to any seniority or other rights and privileges
previously enjoyed, and make him whole for any loss of pay
suffered as a result of the discrimination against him.
All our employees are free to become, remain, or refrain from be-
coming members of the above-named union except to the extent that
this right may be affected by agreements in conformity with Section
8 (a) (3) of the National Labor Relations Act.
DEPEW. PAVING CO., INC.,
Employer.
Dated-------------------- By---------------------------------
(Representative ) ( Title)
This notice must remain posted for. 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
Messrs. William Naimark and Milton Pravitz, for the General Counsel.
Smith, Miller, Murphy and Roberts by Messrs. Esmond D. Murphy and James
R. Ulsh , of Buffalo , N. Y., for the Respondent.
929979 51-vol. 92-11
144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
STATEMENT OF THE CASE
Upon a charge duly filed by Napoleon Sargent, the General Counsel of the
National Labor Relations Board' by the Regional Director for the Third Region
(Buffalo, New York) issued a complaint dated May 5, 1950, against Depew Paving
Co., Inc., hereinafter called Respondent , alleging that Respondent , by discrimina-
torily discharging Napoleon Sargent and by other conduct, engaged in and was
engaging in unfair labor practices affecting commerce within the meaning of
Section 8 ( a) (1) and ( 3) and Section 2 (6) and ( 7) of the National Labor
Relations Act as amended , 61 Stat. 136 , hereinafter called the Act. Copies of
the complaint with copies of the charge were duly served upon the Respondent
and upon Napoleon Sargent.
Respondent filed an answer denying that it committed the unfair labor prac-
tices alleged in the complaint.
Pursuant to notice , a hearing was held on May 22, 25, and 26, 1950, at Buffalo,
New York, before the undersigned Trial Examiner. The General Counsel and
Respondent were represented by Counsel . The parties participated in the hear-
ing and were afforded full opportunity to be heard , to examine and cross -examine
witnesses , and to introduce evidence bearing on the issues . At the conclusion of
the General Counsel's case-in-chief and at the conclusion of the entire hearing,
Respondent moved to dismiss the complaint on jurisdictional grounds and for
lack of proof . After extensive oral . argument on the record the undersigned
denied the motion.
The parties were afforded an opportunity to file briefs and proposed findings of
fact and conclusions of law. Respondent has filed a letter directing the Trial
Examiner's attention to Marathon Rubber Products Co., 10 NLRB 704, which
the undersigned has considered.
Upon the entire record in the case and from his observation of witnesses, the
undersigned makes the following :
FINDINGS of FACT
1. THE BUSINESS OF THE RESPONDENT
Depew Paving Co., Inc., a New York corporation maintaining its principal
-office "and place of business at Depew, New York , is engaged as a contractor in
the general construction of roads and highways and the installation of sewers.
Respondent, in the course and conduct of its business operations during 1948,
performed services for which it received approximately $1,200,000. Respondent
purchased materials , supplies , and equipment valued in excess of $522,000 which
consisted primarily of cement , cement pipe , sand and gravel , steel reinforcing,
and crushed stone.
Respondent , in the course and conduct of its business operations during the
year 1948, performed various highway construction work for the State of New
York and the town of Cheektowago , New York, for which it received approxi-
mately $1,284 ,000 and $40 ,000 respectively . This work consisted primarily of
the installation of sewers and-the construction of highways and roads within the
State of New York.
During the year of 1949 , Respondent 's purchases of materials and supplies
approximated $652,000 and consisted primarily of cement , steel, slag , pipe, bricks,
lumber, crushed stone, and sand and gravel. All materials and supplies were
purchased , produced and/or manufactured locally within the State of New York
1 Hereafter references to the General Counsel are to his representatives at the hearing.
DEPEW PAVING CO., INC. 145
with the exception of $11,159.55 worth of pipe which was purchased in Buffalo
but produced and/or manufactured and shipped from points outside of New York
to Respondent. The figures concerning total purchases for 1949. include ; $51,-
656.56 worth of steel purchased from Bethlehem Steel Company within New York,
$35,523.66 worth of steel purchased from Wickwire Spencer Steel Company in
New York, and $61,993.33 worth of cement purchased from Lehigh Portland
Cement Company purchased within New York. Also during 1949, Respondent
purchased two bulldozers valued at approximately $20,000 from International
Harvester Machines. These bulldozers were purchased locally and the point
of origin is undetermined.
Respondent, in the course and conduct of its business operations during the
year 1949, rendered services for which it received approximately $2,148,867.
These services included the repair or reconstruction of a landing strip at the
Buffalo Airport for which Respondent received approximately $610,455; con-
struction of 4.7 miles of the Grand Island West River Parkway (a State parkway
commission road on Grand Island which is bordered by the Niagara River which
runs between the United States and Canada) in Erie County for the New York
State Department of Public. Works for which Respondent received approxi-
mately $774,554; construction of 2.13 miles of union road (State Route 18B
ending at State Route 240 which in turn crosses U. S. Highway 20) in Erie
County, New York, for the New York State Department of Public Works for
which Respondent received approximately $76,067; paving of 4.82 miles of Hol-
land Yorkshire Road (New York State Highway No. 16 which crosses U. S.
Highway 20) in Erie County, New York, for the New York Statq Department of
Public Works for which the Respondent received approximately $668,953; con-
struction of 2.99 miles of Attica-Batavia Road (New York State Route 98 which
crosses U. S. Highway 20) and two bridges over creeks for the New York State
Department of Public Works for which the Respondent received approximately
$18,836.
Buffalo Airport is used by American, Capital, and Robinson Airlines and by
the Flying Tigers, which is a freight line, and Buffalo is thereby connected
with passenger and air express routes from and to all points of the globe. Since
Respondent engages in the construction of instrumentalities of commerce and
arteries essential to the flow of commerce among the several of the States, it
is directly and intimately related to the free flow of commerce and I find that
it will effectuate the policies of the Act to assert jurisdiction (see Strong
Company, 86 NLRB 687; Brown, Ely Co., 87 NLRB 27; J. R. Reeves avd A.
Teichert & Sons, Inc., 89 NLRB 54).
II. THE LABOR ORGANIZATION INVOLVED
International Hod Carriers' Building and Common Laborers' Union of
America, Local 210, AFL, herein called the Union, is a labor organization
within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Facts
On July 13, 1949, Napoleon Sargent applied for work at the Buffalo Airport,
and was told by C. C. Gibbs, Respondent's secretary and superintendent, "Stick
around awhile. We are going to put on some fellows as soon as we get started
up here." According to Sargent shortly thereafter Gibbs brought "some boots"'
146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and he (Sargent) and three other workers employed that morning were shown
where to work and what to do by "a fellow worker," Walter Todd. Sargent
testified that throughout that day and the next he (Sargent), Norman Horton,
Jim Brooks, and Harry Irwin handled steel reinforcements (10 feet by 14 feet
sheets of steel mesh) placed in poured concrete.
Gibbs testified that on July 13, 1949, four or five men including Sargent and
Harry Irwin came to the airport looking for work and that he (Gibbs) told
them "to stick around" and later that morning they were hired by Anthony
Schunk, master mechanic. According to Gibbs on the 2 days that Sargent
worked, he "worked with the cement crew, the concrete crew." On cross-
examination by Respondent's counsel2 Gibbs failed to deny specifically Sargent's
testimony as to his duties. Gibbs testified :
Q. (By Mr. Murphy) What did Mr. Sargent do during the two days that
he worked there ; what type of work?
A. He worked with the cement crew, the concrete crew.
Q. Did he do any of the steel work he referred to?
A. He couldn't very well. They were all union steel workers.
Q. The fact is lie didn't, is that right?
A. No one could touch the steel, only the union steel men.
Later when called as witness for Respondent Gibbs testified :
Q. (By Mr. Murphy) Mr. Gibbs, what work did Napoleon Sargent do
during the two days he was on the airport job, approximately July 13, 1949?
A. He worked in the concrete crew directly behind the mixer, spreading
concrete.
Q. Did he do any steel job?
A. None whatsoever.
Q. Who was his foreman?
A. Bruno Bonaselli.
Q. Was there a man there by the name of Todd?
A. Yes.
Q. Who is Todd?
A. He works in the concrete crew right behind the mixer, spreading the
concrete ahead of the spreader.
Q. Was he a foreman or another laborer, or what?
A. He is a laborer.
Schunk testified that 'lie (Schunk) hired Sargent' and three other men, that
,argent was assigned to the concrete gang, under the direction of Bruno Bona-
selli, foreman , and worked around "the paving, distributing the concrete,
handling it with a shovel," that Sargent and the others hired with him did
not do any steel work involving the laying of steel mesh, and that such work
was done by "iron workers." Schunk was unable to describe Sargent. He
stated : "I don't know the man well enoe gh for that. I know I hired him and
the last time I seen him was when he was in here this morning." Bonaselli,
Todd, Horton, Brooks, and Irwin were not called as witnesses and the record
does not contain any explanation as to why they were not called.
2 Gibbs was called an adverse witness by the General Counsel and later testified as a
witness for Respondent.
3 Sargent testified he did not know Schunk, and that the master mechanic did not speak
to him on July 13.
DEPEW PAVING CO., INC. 147
Upon the entire record herein the undersigned believes and therefore finds
the facts concerning Sargent's employment to be as testified to by Sargent and
outlined above.
About 15 minutes after Sargent started working on July 13, 1949, a "fellow
worker," whom Sargent could describe only as "some worker there, which, I
think was acting as steward or something" asked Sargent, "Are you in the
union?" and Sargent told him, "No."
Sargent testified that on July 14, 1949 between 3: 30 and 4 p. in. Joseph
Cerullo, president of Respondent, came to where he (Sargent) was working,
called him outside the runway and said to him, "I thought you were in the
union" and when he (Sargent) answered "No, sir, I am not a union member"
Cerullo stated "I have to let you go. If I had known you were not in the
union, I would have put you in with the rest of the fellows. I got some fellows
down on Holland Road I have to try to get in, and I got to let you go." Sargent
testified that the timekeeper (Albert Dicesare) was present during this conver-
sation and that Cerullo told the timekeeper to make up his (Sargent's) pay
"through that day" that Sargent was "finished." According to Sargent at
quitting time that day he (Sargent) was paid oft by the timekeeper.
Sargent indicated uncertainty as to Cerullo's first name and referred to him
as superintendent . However, Sargent testified that he was informed, by another
worker, that Cerullo's first name was Joseph, and that he had known Cerullo
"for quite a while" through his (Sargent's) employment at the National Battery
Company in Depew. Furthermore Sargent gave a detailed description of Cerullo
and Gibbs which indicates the two men are entirely different in appearance.
Sargent testified he "learned" that Cerullo was superintendent of the job and
that he saw him (Cerullo) in working clothes "walking up and down looking
at most of the working fellows" and "talking to some of them." It was stipulated
that "Joseph Cerullo is president of the company" and Sargent was adamant
in his testimony that his conversation was with Joseph Cerullo and not Gibbs
as testified to by Gibbs. The record does not indicate any other Cerullo connected
with Respondent.
Cerullo was not called as a witness and the record does not contain . any ex-
planation as to why he was not called.
Albert Dicesare,' timekeeper, testified that Gibbs laid off Sargent, that about
3 o'clock on the day Sargent was laid off "Mr. Gibbs come up to me and asked
me how much time Mr. Sargent had on the job. I referred to my records and saw
that he had started the previous morning about 9 o'clock and gave him the time
up until 4: 30." Dicesare was not questioned concerning Sargent's testimony
that at quitting time on July 14 he (Sargent) was paid off by the timekeeper
and was not questioned concerning the conversation between Sargent and
Cerullo at which he (Dicesare) was allegedly present. Concerning Cerullo his
(Dicesare's) only testimony was :
Q. Was Mr. Cerullo there at all [at time of layoff] ?
A. I don't believe so. I didn' t see him.
Q. You were present, were you?
A. At the airport?
Q. Yes.
A. Yes, sir, I was.
Gibbs testified that "as a matter of course on all new men" he interrogated
them as to "whether they were members of the union," that such interrogation
I A witness called by Respondent.
148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is made because frequently union representatives inquire of him (Gibbs) as to
the number of union and nonunion men on the job and he (Gibbs ) endeavors to
give accurate information when requested so as not to disturb the amicable rela-
tionship between Respondent and the Union . Gibbs testified there is no arrange-
ment or agreement with the Union regarding employment of employees that
Respondent employs both union and nonunion laborers and at the time of the
occurrences herein there were about 40 laborers employed by Respondent and
about 12 or 14 of them were not members of the Union and that this ratio has
existed for 3 or 4 years.
According to Gibbs on the afternoon of July 13, 1949 , he (Gibbs ) asked Sargent
if he belonged to the Union and when Sargent said, "Yes," he ( Gibbs ) asked to
see his card and was told by Sargent that he would bring it in the next morning.
Gibbs testified that the ' next day between 3 and 4 p. di . he (Gibbs ) asked "to'
see his card" and Sargent stated he "didn't have it, he didn 't belong to the union;
that he had lied in hopes ' he could get into the union and I [Gibbs ] told -him
we couldn 't keep him around , that we didn ' t want anybody to work for us that
lied." Gibbs testified that Harry Irwin was "laid off, too, the same time," that
"they were both together " because "he lied the same as Sargent did" because
"he didn't have a union card and he said he did have one." Sargent and
Irwin, according to Gibbs, were permitted to finish the day and at quitting time he:
( Gibbs ) paid Sargent off in'cash ' and the timekeeper ( Dicesare ) was not present.
Gibbs stated he was not certain but he believed the timekeeper was present during'
the afore -mentioned conversation with Sargent and Irwin on 'July 14, 1949.
Dicesare testified he "didn ' t hear Mr. Sargent talking to Mr. Gibbs " and that he:
"didn 't know that he talked to Mr . Gibbs." As noted previously Irwin did not
testify in this proceeding. '
Gibbs could not recall whether Cerullo was on' the job the day of Sargent's
discharge and stated he (Cerullo )' "was in and out'of the job quite a bit at that
time." Gibbs testified that he (Gibbs ) and not Cerullo "told Mr. " Saigent that
he was through."
Gibbs stated that the only time he saw Sargent was on July . 13 and '14,.-1949;
and "I never seen him before or since."
Sargent, upon recall as a witness , testified that Gibbs did not speak to him on.
July 14; 1949 , that Gibbs did not say anything to' him about having lied about
being a member of the Union , and that Cerullo , not Gibbs , told him he was dis-
charged. Sargent . stated lie never lied about being a member of the Union and
denied specifically that Gibbs was the man that had the talk with him about
laying off and stated that at quitting time the "timekeeper came back and told
me to come ' out and he banded me the envelope."
Sargent gave ' direct, positive , and detailed testimony practically all of which
was subject to verification or contradiction by officials and employees of Re-
spondent . Nevertheless , these officials and employees , especially Cerullo, Bona-
selli, Todd , Horton, and Brooks, did not testify herein and no explanation - of their
failure to testify has been 'made. Furthermore these same officials and em-
ployees, except Cerullo, together with Irwin, according to Gibbs' testimony, were
in a better position ( because of their alleged active participation in the event
and occurrences involved ) than those called as witnesses to corroborate Gibbs'
testimony . Under these circumstances Respondent 's failure to call the afore-
mentioned persons or explain its failure to do so justifies an inference that had
they appeared and testified they would have corroborated Sargent's testimony.
In any event Cerullo's failure to testify " leaves Sargent 's testimony concerning
the conversation between Sargent and Cerullo undenied . Dicesare , although
DEPEW PAVING CO., INC. 149
called as a witness by Respondent , was not questioned concerning .the gravamen
of Sargent 's testimony ( the alleged statements by Cerullo in the timekeeper's
presence ), did not deny giving Sargent his "envelope ," and did not corroborate'
Gibbs' testimony concerning his (Gibb's ) alleged conversation with Sargent.
On the basis of the entire record, the undersigned credits Sargent 's testimony
and believes and finds that the facts concerning Sargent's employment and dis-
charge to be as revealed by his testimony as stated above.
The complaint alleges :
At all times since about July 12, 1949, and prior thereto, Respondent and
the Union were parties to an agreement and an arrangement relating to
wages, hours and conditions of employment , and at all times since then
enforced such agreement and such arrangement between them , which( re'
quired - that all employees hired . by Respondent must be members In good
standing of the union as a condition of employment.
Respondent 's answer ' denies . this allegation.
The only direct evidence concerning this allegation is the testimony by Gibbs,
and he testified that no agreement or arrangement whatsoever , written or,oral,
existed or exists between Respondent and the Union regarding employment- of
employees . Counsel for the General - Counsel, when asked -during his oral agree
•ment what evidence he thought supported the above allegation , stated:
We have no direct evidence to support that other than the inference that
could be drawn from ' the testimony given by Sargent as to his conversation
with Mr . Cerullo in which . Mr:.Cerullo said, I believe ,,, "We can't hire you'
unless you are a member of 'the union."
As indicated during the oral argument the undersigned believes the testimony,
referred to does not support the above allegation of the complaint.
It appears , however, from the testimony of Sargent , which the undersigned
credits that employees are interrogated concerning 'their union membership or
affiliation and that Respondent . requires membership in good standing in the'
Union as a condition of employment and the undersigned so' find. . Gibbs'
testimony also establishes such ' interrogation.
B. Conclusion
The Board has frequently held that interrogation of employees concerning
their union affiliation is violative of the Act. The undersigned finds nothing.
herein requiring or warranting a deviation from this interpretation of the
statute. The facts set forth in this Report establish an unwarranted invasion of
employees ' privacy having a, reasonable tendency to interfere with the enjoyment
of their rights guaranteed by -the Act : N. L. R. B. v. Fairmont Creamery, 169
F. 2d 169; Standard-Coosa-Thatcher Company, 85 NLRB 1358.
Under the facts as found by the undersigned , there is no question that Respond-
ent violated Section , 8 (a) (1) and ( 3) of the Act by its discharge of Napoleon
Sargent on July 14 , 1949. Furthermore even if Gibbs ' testimony is credited
Respondent 's position probably is untenable as an excuse for its conduct since,
under Respondent 's version of the facts , the sole question is whether Sargent
was acting within his rights , as guaranteed by the Act , I. e., is a misstatement,
uttered without malice and without intent to injure the employer , in response
to an inquiry prohibited by the Act , a just cause for discharge ? ' In view of
6Cf. N. L. R. B. v Peter Collier Kohler Swiss Chocolates Co., 130 F. 2d 503 (C. A. 2) ;
N. L. R. B. v. Illinois Tool Works, 153 F. 2d 811, 815-816 (C. A. 7).
150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the findings made herein it is not necessary to determine the answer to the
question posed. Nevertheless the undersigned is cognizant of the argument that
to countenance a discharge under such circumstances may lead to a self-de-
feating interpretation of the Act and a frustration of the policy against interro-
gation whereby the Board, on one hand, would hold that employers violate the
Act by interrogating, while telling employees, on the other hand, that they must
not make misstatements in response to such interrogation and if they do the
Board will not lend its processes to obtain their reinstatement in the event of
discharge therefor.
The undersigned concludes and finds that the afore-mentioned acts and conduct
of Respondent constitute unfair labor practices within the meaning of Section
8 (a) (1) and (3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above, occurring in
connection with its operations described in Section I, above, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the several States,
and such of them as have been found to constitute unfair labor practices-tend
to lead to labor disputes burdening and obstructing commerce and the free flow
of commerce.
V. THE REMEDY
Having found that Respondent has engaged, in certain unfair labor practices,
it will be recommended that Respondent cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
It has been found that Respondent discriminated .in regard to the hire and
tenure of employment of Napoleon Sargent thereby encouraging membership
in the Union. It will be recommended that Respondent offer to Napoleon Sargent
immediate and full reinstatement to his former or substantially equivalent po-
sition 8 without prejudice to his seniority or other rights and privileges and
that Respondent make whole Napoleon Sargent for any loss of pay he may
have suffered by reason of Respondent's discrimination against him' Consis-
tent with the policy of the Board8 the loss of pay shall be computed on the
basis of each separate calendar quarter or portion thereof during the period
from Respondent's discriminatory action to the date of a proper offer of rein-
statement. The quarterly periods hereafter called "quarters" shall begin with
the first day of January, April, July, and October.
In accordance with the policy of the Board it will be further recommended
that Respondent make available to the Board upon request payroll and other
records to facilitate the checking of the amount of back pay due.'
Since it has been found that Respondent did not enter in any agreement or
arrangement with the Union requiring membership in the Union as a condition
IIn accordance with the Board's consistent interpretation of the term, the expression
"former or substantially equivalent position" is intended to mean "former position
wherever possible and if such position is no longer in existence then to a substantially
equivalent position." See The Chase National Bank of the City of New York, San Juan,
Puerto Rico, Branch, 65 NLRB 827.
' See Crossett Lumber Co., 8 NLRB 440; and Republic Steel Corporation v. N. L. R. B.,
311 U. S. 7.
$ F. W. Woolworth Company, 90 NLRB 289.
OF. W. Woolworth Company, supra.
DEPEW PAVING CO., INC. 151
of employment it will be recommended that the complaint be dismissed insofar
as it alleges such an unlawful agreement or arrangement.
Upon the basis of the foregoing findings of fact and upon the entire record
in the case , the undersigned makes the following :
CONCLUSIONS OF LAW
1. International ' Hod Carriers ' Building and Common Laborers ' Union of
America, Local 210, AFL , is a labor organization within the meaning of Section.
2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Na-
poleon Sargent thereby encouraging membership in a labor organization, Re-
spondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 ( a) (3) of the Act.
3. By such discharge and by otherwise interfering with, restraining , and co-
ercing its employees in the exercise of the rights guaranteed in Section 7 of
the Act, Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 ( a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and ( 7) of the Act. '
[Recommended Order omitted from publication in this volume.]